Access To Justice For The Self-Represented Litigant
In my experience as a limited retainer lawyer and as an advocate for self-represented litigants, I have an insight into a problem that has long posed a challenge to the legal community: access to justice for those who cannot afford to retain a lawyer to take full carriage of a file.
According to some estimates, up to 60% of Ontario civil and family litigants are currently self-represented. I have no idea as to what percentage of those people were formerly represented by legal counsel on a full retainer, but I suspect they comprise a significant proportion of that figure.
I first became alert to this issue upon being contacted on a number of occasions by individuals who sought limited retainer assistance on crafting their legal arguments on files that were formerly handled by prior counsel. Some of these individuals had effectively “tanked out” their legal budget in pursuit of their case, and could no longer afford the entire complement of legal services that came with the hiring of a lawyer on a full service retainer.
Litigation – whether in the family law context or in any other area of civil litigation – is both expensive and frustrating, with costs and fees that can potentially eat up a technical “victory”, in addition to the Section 49 cost consequences that come from making an improvident decision with respect to avoiding a reasonable settlement.
At the risk of generalizing, I would say that the conduct of litigation is roughly divided between argumentative and procedural matters. It is not the scope of this article to evaluate which aspect is more crucial to litigation. I would say that, in general, they are both equally crucial. A great deal of the expense of litigation comes from staying within the Rules of Civil Procedure in the conduct of your case. The procedural rules may seem intimidating, excruciatingly complex, and unfathomable to the average layman.
It is due to such an impression that many litigants effectively leave the conduct of their file to their lawyer, in many cases, with little input or opinion from the client. In practice, such a client may treat their own lawyer as being the “boss” of the lawyer-client relationship, giving them carte blanche discretion to craft a legal strategy that might not be in accord with the kind of budget they have available to service it. As a result, such clients may “tank out” in the midst of litigation, and then are left with a file that they can no longer afford to pursue, yet with the cost consequences hanging over their head if they abandon it. In short, they need an exit strategy, but can no longer afford legal counsel to extricate them.
However, such litigants should not think of the retainer of legal services as an all-or-nothing proposition. Ultimately, the client is charge of the retainer, and it is the client who decides how much or how little they need of a lawyer’s services.
A retainer of legal services is not like an exclusive agency contract. At any point, a client is free to seek out another lawyer to get a second opinion on the first lawyer’s legal strategy, to instruct the lawyer to offer firm quotes, or to stop work on a matter that is getting out of hand.
Because a full retainer lawyer has responsibility for all documents pertinent to the client’s case, they can often get bogged down in attending to the necessary work needed to manage the complex procedural aspects of a case, but in the course of so doing, not be sufficiently attentive to the argumentative and evidentiary aspects of their client’s case. As a result, the client may be saddled with the proverbial $200,000 file that contains arguments with no “meat on the bone.”
While their lawyer has seen to it that everything has been properly prepared, served, and filed, an inordinate focus on the Rules of Civil Procedure may mean that they have not seen the forest for the trees in crafting the guts of their client’s arguments, or in looking objectively at the strengths and weaknesses of their client’s evidence – because when you look at the case law, in the overwhelming majority of litigation cases, the result often comes down to a detailed consideration of those strengths and weaknesses in the client’s evidence.
That is why it helps to look upon the conduct of litigation as a division between argumentative/evidentiary matters and procedural matters. A sophisticated self-represented litigant may believe that they can handle all such matters, but they need to recognize when it is necessary to retain the limited services of counsel to assist in one or many aspects of either argument or procedure.
And though many self-represented litigants feel that the procedural portion is the more overwhelming and intimidating aspect of their file, they need to recognize that it is often hard to be truly objective about the strengths and weaknesses of one’s own legal arguments. Their file may very well turn on supporting case law to back up their arguments, and yet, if a self-represented litigant lacks sufficient research skills, the effect is like going into battle with second-hand armour.
Fortunately, the quest for legal help need not be a fruitless endeavour for litigants on a tight budget. An increasing number of lawyers – myself among them – do offer affordable legal assistance through limited retainers that can be customized to a self-represented litigant’s particular needs and budgetary restraints.
Through a limited retainer arrangement, the litigant can negotiate a fixed fee for very particular tasks. If you can’t afford the full cost of a factum, for instance, you might consider the value of having a lawyer research and write up a summary legal argument on your behalf, from which you may construct your own factum.
The key to a successful limited retainer relationship is to recognize that the lawyer-client relationship is limited to strictly defined tasks. And when those tasks are defined sufficiently, it enables the lawyer to offer affordable fixed quotes for such tasks, which further enables you to get control over your legal budget.
As for those intimidating procedural matters, self-represented litigants should be aware that the legal community has become in recent years far more alert to the special needs of litigants who can’t afford full retainer assistance. In 2006, the Canadian Judicial Council adopted a Statement of Principles on Self-Represented Litigants. Though advisory in nature, certain principles from this document have been judicially considered by Canadian courts, as in the following principle cited in Cole v. BCNU:
“Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.”
Moreover, the above statement is consistent with Ontario’s Rules of Professional Conduct, which advise against sharp lawyering practices; and which urge lawyers to grant reasonable courtesies when requested, particularly when such courtesies do not prejudice the other side.
Though the Canadian Judicial Council’s Statement of Principles does not as yet function as a code of conduct for the legal community, a self-represented litigant should consider its use in the conduct of litigation as a means to prod opposing counsel to consider their special needs.
Too often, opposing lawyers resort to complex procedural maneuvers as a means to outflank a self-represented litigant whom they know to be inexperienced in such matters. When filing deadlines are missed, or documents improperly served, or in response to any number of procedural irregularities committed by an unsophisticated self-represented litigant, the opposing lawyer may opt to take full advantage of the situation, to avoid arguing the merits of a case in the hopes of getting it thrown out purely on technical grounds.
Self-represented litigants should be aware, however, that the Rules of Civil Procedure ultimately exist to protect the dignity and smooth functioning of the court process. Though deadlines may be missed, the courts do have discretion to rectify and waive certain minor irregularities and technical breaches of the rules, so long as the party in violation has shown themselves to have acted in good faith, with a reasonable explanation for the breach of rules.
With regard to self-represented litigants, the solution comes down to being proactive and honest about one’s lack of sophistication with procedural rules. As of this writing, many judges aren’t familiar with the Canadian Judicial Council’s advisory Statement of Principles on Self-Represented Litigants. It is hoped, then, that litigants who include such documents in their court submissions – in response to “sharp” procedural lawyering from the other side – will sensitize and alert a judge to the special needs of the self-represented litigant in regard to procedural irregularities. If, as a result, a court cites this document in support of a favourable ruling for the self-represented litigant, the principles enunciated in the document will begin to have the force of legal precedent behind them, as evidenced by the following comment by the court in Cole v. BCNU in regard to procedural time limits:
“Courts routinely extend some latitude to self-represented litigants on time limits, as they should, while trying to maintain a balance of interests and an orderly process.”
Moreover, as their own counsel, the self-represented litigant should consider that their best weapon in litigation is to be proactively reasonable. If unsure about meeting certain filing deadlines, there is nothing wrong with proactively contacting opposing counsel to ask when they need to be served, and, specifically, in what manner. The key here is to signal to a court that you’re reasonably trying to stay within the rules, and that you had actually contacted opposing counsel to request their assistance in doing so. If opposing counsel refuses to do so, it would be hard for them to subsequently assert in court that they were prejudiced by your alleged “disregard” for court procedure.
If the self-represented litigant feels bogged down by what they perceive as “sharp lawyering” from the other side, they should be proactive in requesting that the lawyer not take procedural advantage of their relative lack of sophistication in such matters. I would guess that courts are generally – and increasingly – sympathetic to evidence that a self-represented litigant has sought to curtail procedural abuse by the other side. And by “evidence,” I mean that the litigant is able to document the communication with the other side, usually by way of email.
Too many self-represented litigants remain unaware that the conduct of litigation can and does have cost consequences for either side. In my opinion, the best defence for an unsophisticated litigant – when faced with what they perceive as sharp lawyering from the other side on strict procedural grounds – is to document a communication with the other side, asking them to consider the unsophisticated litigant’s lack of experience with procedural rules, and to request reasonable courtesies in respect of inadvertent technical breaches of such rules. If the other side refuses to grant such courtesies, then at least the self-represented litigant may be able to document that the other side has acted unreasonably in their conduct of litigation, which might expose such lawyers to the cost consequences of acting in such a manner (or, at the very least, to alert them to the potential cost consequences for their client if they do not desist from such conduct).
Self-represented litigants should be aware of the many resources out there to assist them on procedural matters. Court clerks can provide information about schedulings and deadlines. Law librarians might assist in legal research. Some law associations offer pro bono legal help from some of their members. And, as stated before, if you are bogged down and unsure about any procedural matter, don’t be shy about putting the other side on notice and requesting the granting of courtesies in order to waive certain technical irregularities.
And lastly, a word for those who don’t want to go it totally alone, and who may want to consider retaining a lawyer for defined and limited tasks on a fixed quote. In my own practice, I focus strictly on assisting clients in the drafting of persuasive legal arguments, in researching supportive case law, and in the “war-gaming” of their evidence. So as not to confuse the scope of a limited retainer, I endeavour not to mix such services with procedural matters related to filing, serving, and the preparation of documents. In practice, that means that once I have completed work on drafting the guts of a factum, pleading, or legal argument, the limited retainer is at an end, unless I am newly retained for an additional strictly defined task. If the self-represented litigant nevertheless requires procedural help from a lawyer in the preparation, filing, and serving of their documents, I can refer them to limited retainer lawyers who generally focus on providing procedural assistance.
From the lawyer’s side, the trick – and difficulty – in offering limited retainer assistance is that such retainers are often customized and non-standard. In other words, it takes a special kind of skill to draft and define the terms of a retainer that must be customized with each new client and task. Opportunities for confusion of the scope of the retainer may abound, and for many lawyers, it is just too much of a hassle to offer limited assistance when one doesn’t have full carriage of a file.
And indeed, it can be a hassle. Aware of the fact that some clients may perceive their retainer with the lawyer as going far beyond the scope for which that lawyer intended, the Law Society has passed updated rules to mandate that limited retainer lawyers constantly ensure that clients do not misperceive their services as being on full retainer.
In practice, this may require that a limited retainer lawyer spend an inordinate amount of time in documenting their communication with the client in ensuring that there is no confusion in the scope of the retainer. And yet, this kind of unpaid “papering of the file” can work to eat up the lawyer’s available time, and may ultimately frustrate the very purpose of the limited retainer – to offer affordable legal help.
In light of these complications and hassles, it is not too surprising that a great many lawyers opt not to get into the thicket of offering limited retainer services (also known as unbundled legal services).
To get around these complications, my own solution has been to maintain a kind of firewall between the legal argument/research tasks I offer and the procedural tasks related to the preparation, filing, and serving of the documents I create for a client. By maintaining such a firewall, there can be no reasonable confusion that I have any carriage of the file. Similarly, limited retainer lawyers who restrict their services to the filing, serving, and formatting of documents drafted by other lawyers may likewise avoid any misunderstanding that they might have full carriage of the file – for the simple reason that they had nothing to do with the drafting of the legal arguments or the designing of the evidence on submission.
For those lawyers intent on offering unbundled legal services, another suggestion is to maintain a further firewall by not communicating with opposing counsel. In light of Law Society rules that opposing counsel may not communicate directly with a represented litigant on the other side without the prior authorization of the litgant’s counsel, I advise my clients to never copy me on their communications with counsel for the other side. If there is to be no confusion in the scope of a limited retainer, it must be clear to all parties that either the litigant is self-represented or that the limited retainer lawyer is not the litigant’s lawyer of record.
Of course, there is an exception when I appear as agent of a self-represented litigant at a court hearing. Under such circumstances, the agent can and does communicate with the opposing counsel in the course of a hearing. However, there can be little opportunity to confuse my task as that of the lawyer of record – for the simple reason that I would be signing in at court as the agent of the litigant, and not as the litigant’s lawyer of record. Under such circumstances, the particular retainer of services would be limited to the court appearance alone, and would be deemed as coming to an end upon the conclusion of that court appearance on that particular day.
In the end, in order for a limited retainer arrangement to work most effectively, the lawyer must communicate to the client as to when exactly the limited retainer begins and ends, and must strictly define the exact task or tasks that the retainer is limited to.
By doing so, the lawyer is able to offer affordable fixed quotes for strictly defined tasks, which enables a self-represented litigant to get full control over their legal budget while at the same time getting the benefit of affordable access to justice for the limited tasks that they can’t handle on their own.
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The preceding should not be relied on as legal advice. It is offered as general information only, on an as is basis.